Gender and the Law Prof Blog

Editor: Tracy A. Thomas
University of Akron School of Law

Monday, May 12, 2014

Government Files Brief in Sixth Circuit Appeal of KY Same-Sex Marriage Case

We're joined this month by guest blogger, Professor Jamie Abrams from the University of Louisville School of Law. Her scholarly interests include integrating masculinities theory in feminist law reforms such as military integration and domestic violence; examining the tort complexities governing standards of care in childbirth; gendered conceptualizations of citizenship; and legal education pedagogy.  

Last week the Government filed its appeal in Bourke v. Beshear, Kentucky’s Western District Court decision recognizing valid out-of-state marriages.  The arguments raised in this Sixth Circuit appeal are worth a read for many reasons, however, you might consider buckling up in your DeLorean time machine because backward time travel will facilitate maximum reading ease of these arguments.  The full text of the brief is here. 

The government relies heavily on the binding precedential value of Baker v. Nelson, 191 N.W.2d 185 (Minn. 1971), appeal dismissed by 409 U.S. 810 (1972) for the proposition that same-sex marriage prohibitions can withstand equal protection scrutiny.  The Government then argues that it has a “legitimate economic interest” in regulating the “traditional man-woman marriage model” because “same-sex couples are materially different from traditional man-woman couples” because “only man-woman couples can naturally procreate.”  Thus, the Government argues, “same-sex couples are not similarly situated to man-woman couples” and the marriage distinction withstands equal protection analysis.  The Government argues that “natural procreation” is “of vital importance to the state” and a “stable birth rate” will “support[] long-term economic stability.”  Seems like a surprising approach for the Government to dig in so dominantly on arguments that have been wholly dismissed in other courts.  I was relieved that my Mother’s Day card yesterday did not affectionately highlight my two contributions to the “long-term economic stability” of the Commonwealth.

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